[T]his Court concludes that there is sufficient evidence upon which a jury could reasonably conclude that all elements of possession of heroin in violation of O.R.C. §2925.11(A)(C)(6)(e) were established beyond a reasonable doubt.

 

State v. Evans

2023 – Ohio – 4838

Ninth District Appellate Court

Medina County, Ohio

December 29, 2023

Ninety in a Seventy Mile-per-Hour Zone

On Monday November 9, 2020, Ohio State Highway Patrol (“OSHP”) Trooper David Pangburn was in his patrol vehicle on Interstate I-71, facing northbound traffic, when he observed a speeding vehicle coming from the south. According to radar, the vehicle was traveling 90 mph in a 70-mph zone. Trooper Pangburn initiated a traffic stop of the vehicle. The validity of the stop is not at issue on appeal.

Two on Board and Driver Mouths the Word Help to the Trooper

Trooper Pangburn approached the passenger side of the vehicle and asked the driver for identification. There was one passenger in the vehicle, later identified as Mr. Evans. Trooper Pangburn observed visible tears on the driver’s face and she mouthed “help.” Trooper Pangburn again asked for identification and the driver stated that it was in her purse in the trunk. Trooper Pangburn had the driver exit the vehicle and retrieve her purse from the trunk. 

Driver Wants to Go Home

After retrieving her purse, the driver went back to the driver’s side of the vehicle and told Mr. Evans that Trooper Pangburn was requesting that she come with him. Trooper Pangburn and the driver walked to the front of the patrol vehicle and the driver produced her identification. The driver told Trooper Pangburn that she wanted to go home and that she wanted Mr. Evans removed from her vehicle.

Mr. Evans had Marijuana Shake on His Shirt

#Clue

Trooper Pangburn asked the driver if there were any guns or drugs in the vehicle and the driver said no. Trooper Pangburn asked the driver if there was any marijuana in the vehicle and, before the driver could answer, Mr. Evans started yelling outside the window. Trooper Pangburn returned to the vehicle and Mr. Evans stated that the driver does not use marijuana, but he had smoked marijuana. The trooper explained to Mr. Evans that he saw raw marijuana on his shirt. At this time, Trooper Tara Chambers arrived on the scene to assist due to multiple occupants. The driver went with Trooper Chambers, who placed the driver in the rear of Trooper Pangburn’s patrol vehicle.

Mr. Evans Drivers License was Nestled Inside the Driver’s Bra

After returning to the suspect vehicle, Trooper Pangburn asked Mr. Evans to get out of the vehicle. Trooper Pangburn asked Mr. Evans for identification, and Mr. Evans responded that his identification was in the driver’s bra. Trooper Pangburn had Mr. Evans stand at Trooper Chambers’ vehicle and he returned to his patrol vehicle, where the driver produced Mr. Evans’ identification.

Thank You George Carroll!

Mr. Evans stayed with Trooper Chambers while Trooper Pangburn conducted a probable cause search of the vehicle. The search of the vehicle is not at issue on appeal. Trooper Pangburn observed marijuana shake on the passenger side of the vehicle and a white powdery substance in the glove box.

A Sock with a White Powdery Substance

Trooper Pangburn then searched the vehicle’s trunk, where he found a blue duffel bag with Mr. Evans’ name on it. A black scale, along with two white shoes with socks sticking out, were inside the duffle bag. When Trooper Pangburn removed one sock, he observed a large ball at the bottom of the sock. Trooper Pangburn looked inside the sock and saw that it contained a plastic bag with white powder inside. Trooper Pangburn placed the bag in the trunk and returned to the patrol vehicle. 

Turn Around and Place Your Hands Behind Your Back

After returning to the patrol vehicle, Trooper Pangburn told Mr. Evans to turn around with his hands behind his back. Mr. Evans wanted to know why and Trooper Pangburn told him that he would explain after he placed handcuffs on him.

Mr. Evans Flees, Tasered Three Times and Makes a Feeble Attempt to Gain Control of the White Powdery Substance

As Trooper Pangburn tried to place handcuffs on Mr. Evans, Mr. Evans fled from the rear of the patrol vehicle and out into a lane of travel on I-71. Mr. Evans then ran to the front of Trooper Chambers’ vehicle, pushing her to the side. Mr. Evans continued to run towards the front of the driver’s vehicle. At this time, Trooper Pangburn tased Mr. Evans in the back and Mr. Evans fell. Mr. Evans quickly got up and started reaching into the vehicle’s trunk, specifically into the blue duffle bag with his name on it, where he grabbed one shoe. Trooper Pangburn testified that he tased Mr. Evans two more times because Mr. Evans was not listening to the troopers’ commands or their advisement to stop.

Mr. Evans Uses Non-Specific Pronouns

At some point, before Trooper Pangburn advised Mr. Evans that he had located anything inside the vehicle, Mr. Evans removed the white shoes from the trunk saying, “It’s hers. It’s hers.” Trooper Pangburn was unsure of what Mr. Evans was saying was “hers.”

Back-Up is Requested, Arrives and Helps

Due to Mr. Evans’ resistance, Trooper Pangburn radioed for assistance. With the help of a deputy and township officers, Mr. Evans was finally placed in handcuffs and in the rear of a patrol vehicle.

Sixty-Three Grams of Heroin

After the scuffle, Trooper Pangburn placed the white powdery substance from the sock in a plastic bag, which was then sealed and sent to the OSHP crime lab to be weighed and tested. Trooper Pangburn testified that he received the results from the crime lab indicating that the substance was 63 grams of heroin.

Mr. Evans Tardiness Led to a Ride to Cleveland

The driver testified that she met Mr. Evans in West Virginia, where she has lived all her life. On November 9, 2020, the driver was giving Mr. Evans a ride to Cleveland because he allegedly missed his Greyhound bus. Mr. Evans put his belongings in the trunk of her vehicle. The driver planned to head straight back to West Virginia after dropping-off Mr. Evans in Cleveland.

Can a Passenger be a Co-Conspirator to Speeding?

The driver testified that Mr. Evans wanted her to speed but that, because she could not afford a ticket, she did not want to speed. Mr. Evans told the driver to slow down after seeing the police on the highway but, at that point, it was too late as she was already pulled over. According to the driver, Mr. Evans was in a rush. The driver no longer felt safe after she was pulled over. The driver wanted Mr. Evans and his belongings out of her vehicle and she wanted to go back to West Virginia.

Still Does Not Explain How Mr. Evans Driver’s License was Inside Her Bra

The driver testified that she did not have a pair of white men’s shoes in her trunk before Mr. Evans put his stuff in the vehicle. The driver also testified that she did not put any drugs in the trunk of her vehicle and that she had no idea there were drugs in the vehicle, including the marijuana. The driver went straight home after the traffic stop.

Testimony to Verify Sixty-Three Grams of Heroin

An employee in the drug chemistry section at the OSHP crime lab testified at trial. It is this employee’s job to test for the presence or absence of controlled substances. The employee testified that she ran two different gas chromatograph mass spectrometer (“GCMS”) tests on State’s exhibit 1-B, which was the knotted white plastic bag containing a powdery substance. The presence of heroin, a Schedule I controlled substance, was identified in State’s exhibit 1-B. The weight of State’s exhibit 1-B was 63.6390 grams.

 Trial, Convicted and Sentenced to Six to Nine Years in Prison

Mr. Evans was charged with possession of heroin in violation of O.R.C. §2925.11(A)(C)(6)(e), a first-degree felony. Mr. Evans was arraigned, entered a not guilty plea, and the matter proceeded to a jury trial. The jury returned a guilty verdict to the sole charge and the trial court imposed an indefinite prison sentence consisting of a minimum of six years and a maximum of nine years, with credit for 579 days served.

 Appeal

Mr. Evans appeals his convictions raising two assignments of error for this Court’s review.

Did Mr. Evans Constructively Possess the Sixty-Three Grams of Heroin?

 Established Case Law on Constructive Possession

“Possess” or “possession” is defined in O.R.C. §2925.01(K) as “having control over a thing or substance, but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found.” This Court has repeatedly held that “‘a person may knowingly possess a substance or object through either actual or constructive possession.’” State v. See, 2009–Ohio–2787.  “‘Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession.’” State v. Reis, 2012–Ohio–2482.

This Court has also recognized that “[T]he crucial issue is not whether the accused had actual physical contact with the article concerned, but whether the accused was capable of exercising dominion [and] control over it.”State v. Graves, 2011–Ohio–5997. “Inherent in the notions of dominion and control is some authority over the object, not merely the ability to have access to it.” State v. Carlton, 2013- Ohio-2788, ¶ 11, citing O.R.C. §2925.01(K). “[C]onstructive possession [of drugs] may be inferred from the drugs’ presence in a usable form and in close proximity to the defendant.” State v. Figueroa, 2005–Ohio–1132.

Overwhelming Evidence that Mr. Evans Constructively Possessed the Heroin

The State presented testimony and evidence that, during the search of the vehicle and in addition to observing more raw marijuana shake, Trooper Pangburn observed a white powdery substance in the glove box. Trooper Pangburn then searched the vehicle’s trunk where he found a duffle bag with Mr. Evans’ name on it. Inside the bag was a black scale and two white shoes with socks sticking out. Trooper Pangburn discovered a plastic bag with a white power inside one of the socks. An employee in the drug chemistry section of the OSHP crime lab testified that the powder was determined to be 63.6390 grams of heroin. Trooper Pangburn also testified that before he advised Mr. Evans that he had located anything inside the vehicle or the duffle bag, Mr. Evans ran and removed the shoes from the trunk, stating “It’s hers. It’s hers.” The vehicle’s driver testified to Mr. Evans placing his belongings in the truck and that the white shoes in the trunk, which contained the sock with heroin, did not belong to her.

 Conviction is Upheld

Based on a thorough review of the record, this Court concludes that there is sufficient evidence upon which a jury could reasonably conclude that all elements of possession of heroin in violation of O.R.C. §2925.11(A)(C)(6)(e) were established beyond a reasonable doubt. Assignment of error number one is overruled.

Note: There was a second appeal in this case on the Manifest Weight of the Evidence.  This appeal was also overruled but is not evaluated in this article.

Information for this article was obtained from State v. Evans, 2023 – Ohio – 4838.

State v. Evans, 2023 – Ohio – 4838 was issued on December 29, 2024 by the Ninth District Appellate Court and is binding in the following Ohio Counties: Lorain, Medina, Summit and Wayne.

Lessons Learned:

  1. Constructive Possession – The Constructive Possession doctrine was established by the Supreme Court of Ohio in 1982. That court carved out a two-part Constructive Possession test; 1) When an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical control; 2) The defendant was conscious of the object’s presence. State v. Hankerson, 70 Ohio St.2d 87 (1982)  The most challenging element is prove that the person was conscious of the object.  In this case Mr. Evans could not have provided much more evidence that he was conscious of the heroin.  He had marijuana shake on his shirt, a white powdery substance in the glove box, he ran when Trooper Pangburn opened the trunk, he made a feeble attempt to grab the heroin out of the trunk and had to be tasered three times to be taken into custody.
  2. Thank You George Carroll – The U.S. Supreme Court established the Automobile Exception “On reason and authority, the true rule is that, if the search and seizure without a warrant are made upon probable cause that an automobile or other vehicle contains [contraband] … the search and seizure are valid.” Carroll v. United States, 267 U.S. 132 (1925).  George Carroll and his co-conspirators were transporting illegal liquor during Prohibition. Agent Skully searched his vehicle and the U.S. Supreme Court established the Motor Vehicle Exception.  Thanks George!
  3. Motor Vehicle Search Expanded by Bandit – The Motor Vehicle Exception was expanded on Tuesday June 1, 1982 when the U.S. Supreme Court issued United States v. Ross, 456 U.S. 798 (1982) as the court held “‘If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.’” Id at 825. Consequently, the Motor Vehicle Exception legal threshold is probable cause that a container inside a vehicle contains contraband.  For more on United States v. Ross, 456 U.S. 798 (1982) see What is Bandit’s Paper Bag?
  4. Place Your Hands Behind Your BackWhen law enforcement arrests a suspect, the suspect should always be told they are under arrest to comport with the Darah Doctrine; State v. Darah, 64 Ohio St.2d 22, 26 (1980). “An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested.”. The fourth element is that the suspect understands they are under arrest and that should always occur when the officer tells the suspect they are under arrest.  This is important so the prosecution is not challenged in a Resisting Arrest charge.  I routinely told suspects to place their hands behind their back without telling the suspect they are under arrest.  This was a mistake.  Do not repeat my mistake.
  5. Pre-Sent Arms! Ohio State Highway Patrol Trooper David Pangburn should be highly commended for his actions. His criminal prowess was spot-on and he conducted an investigation that led to a first degree felony, conviction that was upheld by the Ninth District Appellate Court.  Well done Trooper Pangburn!

Does your agency train on Constructive Possession Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.